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  • Uttering threats allegations and its impact on Family Court.

    OK so as some of you have probably pieced together, I'm facing a criminal chrge from my ex's husband - as well as fighting certain aspects of a 'motion to change' in family court as well.

    Now I'll be perfectly honest and admit that for the incident in question we spoke and I made an innapropriate remark. However, I certainly did not threaten anyone.

    I'v been offered a settlement of no permenant record with a continuation of the conditions set out by my 'undertaking to a peace officer' when I was arrested. So it's either that or goto trial. Lawyer advises me that the only differnece likely between accepting the offer and being found guilty at trial is virtually the same, except to be found guilty would mean to have a criminal record.

    On principal alone, and at further expense to myself - I am going to trial.

    Now I've spoken this matter over with flic lawyers and criminal lawyers and they say that these sort of allegations are very common in family court, and that it will likely not be too much of a factor for family court results.

    Yet, I am facing the possability of being convicted of a criminal offence and cannot imagine how this would not be a very significant factor should my worst fears be realized.

    Anyone care to comment?

  • #2
    That totally sucks.

    My understanding is that the results of one trial are not allowed as evidence at another. However I'm not a lawyer blah blah.

    You might notice that even in criminal trials reported in the press, if an accused has an existing record for theft, murder, assault, etc, these aren't allowed to be brought up at trial. Much to the complaint of news columnists sometimes. An accused is tried based on the evidence of the particular incident.

    My understanding is that at a family court trial the criminal charges may not be brought up. However you should check this with an attorney, I'm just some guy on the internet.

    Comment


    • #3
      Researching Canlii, and I am doing my homework everday, I haven't read judges giving any significant weight to prior criminal record of the parties UNLESS the incident/charge/conviction affected your parenting abilities and/or children's well being. I guess an example would be - the children were present, heard the threats and they now need counselling or are affraid of you. Judges are focused on one thing only - THE WELFARE OF THE CHILDREN. The way I see it, they don't care if your using methamphetamine as long as it's not in front of the kids and you properly care for them

      But there's a flip side to that coin. Because it was directed to your ex's husband the family judge might look at it differently then if you knocked some guy out in a bar, ya know what I mean. So be careful how you thread.

      They certainly CANNOT use any allegation/charge that you haven't been proven guilty of. That's against the law. Your ex or her lawyer might try to use it, but then your money sucking lawyer has to - you know what - OBJECT!

      Comment


      • #4
        Originally posted by Mess View Post
        if an accused has an existing record for theft, murder, assault, etc, these aren't allowed to be brought up at trial.
        but are allowed at sentencing

        Comment


        • #5
          They can use the testimony from the criminal trial

          My Ex, (female) was charged with assault against me (2 X in 2010) and I had to appear as a witness.

          Here is, word for word, what i paid my lawyer to tell me...

          -
          It is true that your testimony in criminal court will impact your family court case, but it can impact your Ex's family court case as well, both positively and negatively. For example, her lengthy testimony can be used as material to impeach her if she makes subsequent inconsistent statements in the family proceeding. Both you and your Ex need to walk on eggshells as a result of the criminal matter.- your Ex's family lawyer will of course want to append parts of the criminal transcript to future family court pleadings. In response, I will be strenuously opposing that any weight be given to the criminal transcript in family court, due to the factors you outline below. Judges do not simply accept evidence as given to them; each piece of evidence has to be weighed for credibility and reliability, and context is important. You will have a chance to address any misuse of the criminal transcript. However, to be frank, it will take effort to dispel negative first impressions IF the transcript is not favourable to you.

          So, although I am not a lawyer, the above should shed some light from the legal end.

          Comment


          • #6
            Originally posted by Skndlz2904 View Post
            but are allowed at sentencing
            True but you don't get sentenced in a family court, although I'm sure sometimes it feels that way. My understanding is that there is a fundamental legal principal here that trials are separate.

            Comment


            • #7
              Yes no doubt separate trials, separate though seemingly unrelated courts. My issue is that I was there as a witness to an assault on me with a peace bond in place. The defense attorney, decided it would be a great strategy to try to prove my Ex was abused for years and that I set up the assault so she would be arrested and I would have the kids and the house, so they dragged the last 25 years of the relationship into court.

              The Crown questioned me based on the assault and had little info on the relationship, therefore unable to ask arms length question of me or her. My 12 year old daughter and I, on the other hand, were thoroughly grilled by the defense, of course aimed at making me look bad. On several occasions I was warned by the judge to stop badgering the attorney and at one point compared his height and his intelligence to my daughter. He was trying to show and did successful that I can get angry; such as asking for a specific number of occasions an event happened which cannot be accurately quantified over 25 years. I kept answering I don't know on one question, 9X refusing to guess.

              The point is, transcripts from this case which are one sided, can and will be used in family court. Just another display of a fair court system.

              Comment


              • #8
                My current husband was charged with criminal harassment after taping phone calls to find out definitively if his wife (now ex) was having an affair.

                He took the kids to an event, came home to find her in bed with the bf. She grabbed the kids, refused to leave the house and called police saying she was afraid for her life. Angry words were exchanged but no death threats. He plead guilty in exchange for a conditional discharge.

                Five years later, we are in family court suing for custody and this issue continues to be a problem..because it involves the family, not a stranger. Our lawyer told us that the judge will take this conviction into consideration, that it directly affects my husband's credibility. This is crap-- we are very open and honest people and the other party lies through her teeth.

                I wish every time this comes up that my husband had fought these charges at the time. He felt that he would not have a criminal record if it was discharged--but it still counts as a conviction. Now is the time to "waste money on lawyers". Besides, who says the judge may not order a conditional discharge even if you are found guilty?

                Comment


                • #9
                  Wretched.... fight it tooth and nail...

                  I am going through exactly the same scenario as you, having had the same bs allegation made against me, in the middle of a legal battle with my ex who is pulling out all stops to try to prevent me from spending time with our children.

                  I am fighting the criminal charge self-rep, and am 100% confident of being acquitted. My trial started already, but ran short of time by about 2 hours from finishing, and we don't come back again for 4 1/2 months to finish.... arggggh.

                  Whether or not you are convicted should make no difference in your custody issues. That is, IF we lived in a perfect world, and IF cases were truly decided upon fact instead of perception. In case you haven't figured that one out.... too many if's in my last statement. You need to try to have either the charges dropped or an acquittal, to be safe.

                  Once you have the acquittal, hopefully you can use that to build upon, showing your ex's unfounded allegations, and your persistence and resolve to continue on to fight for the best interests of your kids. Turn the negative into a positive, it's the only way to effectively deal with the false allegations.

                  To date, I have dealt with 8 police investigations and 3 cas investigations. Keep your cool, keep positive, and keep fighting! A good parent looking out for the best interests of their kids would not make false allegations, and would try to resolve differences through the proper channels before making the kids go through police involvement or cas or what have you... Keep that in mind as the allegations fly, and try to organize your defenses along those lines.

                  Good luck. Be strong. Be patient.

                  Comment


                  • #10
                    Thank you Wretched, if more of us stop bending over and taking the peace bond offer or anything less than acquitted then we will clog the system and force them to make changes. These false allegations must stop and you are doing your part to help us all out. If there is anything I can to to help please let me know.

                    Comment


                    • #11
                      Well the lying party would have to get charged with public mischief or something like that I believe. But that never happens. And yes a MAN will be arrested if his ex SAYs that he hit or threatened her. This happens all the time and poses a major problem because it severs a father from his children right away and makes it very easy for a woman to gain custody of the children. Alot of men opt our for a plea bargain, something like a peace bond or something else just to have it over with, while in the short term this is great but in the long term this is terrible as it is allowing the cycle to continue. If everyone who had a false charge on them took it to trial our Criminal justice system would ground to a halt and be so clogged it would force change.

                      Comment


                      • #12
                        iceberg,

                        The way it works is that the job of the police is to collect information and pass it on to the crown attorney, who is mandated by the Ontario gov't to basically follow through no matter what. Even if they have some doubts at to the validity.

                        The police don't care if you have done it or not... the charge being laid gets it off their plates and they don't have to field another half dozen calls from your ex.

                        The crown proceeds without caring if you did it or not, because for them to fulfill their mandate with the gov't, they have to proceed. Most either plead guilty or take a peace bond without a record. Problem solved from police and crown perspective, but absolutely no justice is done.

                        If everyone who was falsely accused pushed forward to trial, perhaps we would see some changes due to the backlogs... but the reality is, we are so tired of fighting by then (and are out of $), that the peace bond looks like not such a bad option. Your ex wins. The police and crown are indifferent.

                        And yes, I am cynical... I have been through it and my eyes are wide open now.

                        Comment


                        • #13
                          might I ask a simple question. i was given what really sounds like the advice of the century - to get a personal recorder to record ALL interactions with your ex pending this crap happening to me. I have been peiecing things together and I was on the page of "am I being paranoid on the road to yet another "mental breakdown".

                          So here goes - zero experience with these recorder things - i gave it thought today and i only came up with a senerio of, "hold it a sec while i reach in my pocket and figure out how to get this thing recording....... ok i am ready!" Ok sounds like I am a tad not with it - but is there some kind of setup that is easy to get it started and get the job done?

                          Next would be the file - say 20 fringe recordings that start a pattern and should the unimaginable start - at least there would be that recording and the twenty before that might help one's defense. Next is the recording itself - is there a kind of recording that is digital at the getgo and then it could be easily transfered to the computer. While I am at it the last would be recommendations on a type (brand) where I can get it (store)? Is there anything I would have to do so this recording interactions is legal and I won't get into trouble just for recording in the first place?

                          Comment


                          • #14
                            Originally posted by ddol1 View Post
                            might I ask a simple question. i was given what really sounds like the advice of the century - to get a personal recorder to record ALL interactions with your ex pending this crap happening to me. I have been peiecing things together and I was on the page of "am I being paranoid on the road to yet another "mental breakdown".

                            So here goes - zero experience with these recorder things - i gave it thought today and i only came up with a senerio of, "hold it a sec while i reach in my pocket and figure out how to get this thing recording....... ok i am ready!" Ok sounds like I am a tad not with it - but is there some kind of setup that is easy to get it started and get the job done?

                            Next would be the file - say 20 fringe recordings that start a pattern and should the unimaginable start - at least there would be that recording and the twenty before that might help one's defense. Next is the recording itself - is there a kind of recording that is digital at the getgo and then it could be easily transfered to the computer. While I am at it the last would be recommendations on a type (brand) where I can get it (store)? Is there anything I would have to do so this recording interactions is legal and I won't get into trouble just for recording in the first place?
                            You can buy any simple little MP3 recorder that has a built in mic, some have external mic input. I have a 1 gig recorder I used for recording guitar lessons and paid $40. It is tiny, and the files dump straight to the computer. It is incredibly clear!

                            First off, Ex's don't randomly appear like rashes, but they have similar affects, so be prepared;

                            1. The recorder will record forever...until the battery dies or you run out of space (highly unlikely). Mine recorded a 2 hour guitar recital, the entire 1 hour drive home including getting gas (I forgot it on), my trip to the bathroom, 2-1/2 hours of TV, and then 45 minutes of silence since I went to bed. Then the battery died. Turn it on, put it in voice record mode and let it record while ex is present. Don't concern yourself with unwanted sections. File sizes are non issues.

                            2. Make sure you buy one with date stamp; the files will show the date of the recording, makes it easy to organize. If you can find one that also adds the time of the recording, bonus! It will back up any of your documentation/evidence as it should be identical to your notes if you keep the clock and date set correctly. Don't forget to update at daylight savings time!

                            3. Always carry a spare battery

                            4. Always carry a cell phone that takes good photos, video is a bonus and they must be easily transferred to your PC. Any video capable phone will record audio if you are in a pinch.

                            5. Get a good digital home answering machine, set it to record without time limit so it records as long as the line is open. Make sure it has time/date stamp. If you need to record something in an emergency and your cell phone doesn't record, phone home, machine picks up, conversation recorded! Also, the recording is not with you, its safe at home.

                            6. Always dump your audio/video/photo files to your PC regularly. If there is a really important recording on your MP3 redcorder, and you lose it, you will regret you didn't dump the files.

                            7. For this, and general home PC files especially digital family photos and your court/word files; always make 2 copies of your PC being backed up. One copy on DVD's or external removable hard drive kept at home in a safe place, regularly backed up. Something happens to your PC; stolen, damaged, virus, fire etc., files are protected. Keep a second copy DVD or removable drive somewhere other than your house like a safe deposit box, locked drawer at work, mother's house or a real friend's house preferable password protected. This way, anything happens at home...you have back up.

                            8. Buy an all in one scanner, photocopier, fax, laser printer that uses plain paper, about $200. Copy everything! I scanned all documents, saved them and did what I recommend in #7. You can print whatever number of copies you like. I scan every letter I mail, every kids report card, progress report, medical form, immunization, school trip, receipts for everything, scan scan scan scan and scan. Make back ups, catalog everything!

                            9. Buy a shredder or, use your fireplace like I do. I burn every paper I would like shredded, including offers for credit cards etc....DON"T FORGET THE ENVELOPES THEY COME IN! Imagine your ex, or some-one your ex convinced, to take your garbage to sift through it and find any info. I am not paranoid. I am CMA.

                            Comment


                            • #15
                              Originally posted by Mess View Post
                              True but you don't get sentenced in a family court, although I'm sure sometimes it feels that way. My understanding is that there is a fundamental legal principal here that trials are separate.
                              Hi,

                              In my opinion Mess is correct in saying that criminal proceedings shouldn't be the basis of custody and access. This was clearly covered in Shaw v. Shaw:

                              CanLII - 2008 ONCJ 130 (CanLII)

                              It is the basis generally for dealing with these matters and is a well sighted case in these matters. I recommend you read the full decision and leverage it in your proceedings. It is even sighted in the public media a lot.

                              The important paragraphs state:

                              [8] I do not know what advice Mr. Shaw received from the unnamed lawyer whom he consulted before, as he put it, asking for charges to be laid. I can only hope that no licensed lawyer in this province would have advised the father that the fastest way to get custody and exclusive possession of the family home was to report the mother’s transgressions to the police.


                              [9] I do not know with what police officers Mr. Shaw had contact at the Shelburne Police Service. I can only hope that the officers whom he saw there do not believe that complainants in criminal matters decide whether charges are, or are not, to be laid.


                              [10] I do not know what counsel were present at the bail hearing held in Ms. Shaw’s case, nor do I know whether the matter proceeded, as many such matters do proceed, on the basis of a consent release on terms. I hope that all counsel understand that the terms of release should have some rational bearing on the severity and timeliness of the charges that were then before the court. I have difficulty on this record understanding why the mother was required to abide by the majority of the terms on her recognizance — although I understand completely why the mother may have been prepared to sign just about anything to be released from jail.


                              I hope this helps!
                              Tayken

                              Comment

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